RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Santa Ana
20 Civic Center Plaza (M-30)
Santa Ana, CA 92702
Attn: City Clerk’s Office
FREE RECORDING PURSUANT TO GOVERNMENT CODE § 27383
_________________________________________________________________________
HISTORIC PROPERTY PRESERVATION AGREEMENT
This Historic Property Preservation Agreement (“Agreement”) is made and entered into by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the of the State of California (hereinafter referred to as “City”), and 4th and Broadway OZ SPE, LLC, a Delaware Limited Liability Company, (hereinafter collectively referred to as “Owner”), owner of real property locat ed at 302 West Fourth Street , Santa Ana, California , in the County of Orange and listed on the Santa Ana Register of Historical Properties.
RECITALS
A. The City Council of the City of Santa Ana is authorized by California Government Code Section 50280 et se q. (known as the “Mills Act”) to enter into contracts with owners of qualified historical properties to provide for appropriate use, maintenance, rehabilitation and restoration such that these historic properties retain their historic character and integrity.
B. The Owner possess es fee title in and to that certain qualified real property together with associated structures and improvements thereon, located at 302-308 ½ West Fourth Street and 324 North Broadway , Santa Ana, C A, 92701 (collectively referred to as 302 West Fourth Street, Santa Ana, CA 92701) and more particularly described in Exhibit “A,” attached hereto and incorporated herein by reference, and hereinafter referred to as the “Historic Property.” C. The Historic Property is officially designated on th e Santa Ana Register of Historical Properties pursuant to the requirements of Chapter 30 of the Santa Ana Municipal Code.
D. City and Owner, for their mutual benefit, now desire to enter into this Agreement which defines and limits the use and alteration of this Historic Property in order to enhance and maintain its value as a cultural and historical resource for Owner and for the community; to prevent inappropriate alterations to the Historic Property and to ensure that repairs, additions, new building, and o ther changes are appropriate; and to ensure that rehabilitation and maintenance are carried out in an exemplary manner.
Exhibit 3
MILLS ACT AGREEMENT
302 West Fourth Street
Santa Ana, CA 92701
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E. Owner and City intend to carry out the purposes of California Government Code, Chapter 1, Part 5 of Division 1 of Title 5, Article 12, Section 50280 et seq., which will enable the Historic Property to qualify for an assessment of valuation as a restricted historical property pursuant to Article 1.9, Sec. 439 et seq., Chapter 3 Part 2 of Division 1 of the California Tax and Revenue Code.
NOW, THEREFORE, the City of Santa Ana and the Owner of the Historic Property agree as follows:
1. Effective Date and Terms of Agreement.
This Agreement shall be effective and commence on November 8 , 2023, and shall remain in effect for a term of ten (10) years thereafter. Each year, upon the anniversary of the effective date of this Agreement, such initial term will automatically be extended as provided in California Government Code Sections 50280 through 50290 and in Section 2, below.
2. Renewal.
a. Each year on the anniversary of the effective date of this Agreement, a year shall automatically be added to the initial ten (10) year term of this Agreement unless written notice of nonrenewal is served as provided herein.
b. If the Owner or the City desire(s ) in any year not to renew the Agreement, the Owner or City shall serve written notice of nonrenewal of the Agreement on the other party.
Unless such notice is served by the Owner to the City at least ninety (90) days prior to the annual renewal date, or served by the City to the Owner at least sixty (60) days prior to the annual renewal date, one (1) year shall automatically be added to the term of the Agreement as provided herein.
c. Within 30 days from receipt of City’s notice of nonrenewal, the Owner ma y file a written protest of City’s decision of nonrenewal. The City may, at any time prior to the annual renewal date of the Agreement, withdraw its notice to the Owner of nonrenewal. d. If either the Owner or the City serves notice to the other of nonrenew al in any year, the Agreement shall remain in effect for the balance of the term then remaining, either from its original execution or from the last renewal of the Agreement, whichever may apply.
3. Standards and Conditions for Historic Property.
During the term of this Agreement, the Historic Property shall be subject to the following conditions, requirements and restrictions:
a. Owner shall maintain the Historic Property in a good state of repair and shall preserve, maintain, and, where necessary, restore or rehabilitate the property and its character - defining features described in the “Historical Property Description” attached hereto, marked as Exhibit B, notably the general architectural form, style, materials, design, scale, proportions, organization of windows, doors, and other openings, textures, details, mass, roof line, porch and other aspects of the appearance of the exterior to the satisfaction of the City.
MILLS ACT AGREEMENT
302 West Fourth Street
Santa Ana, CA 92701
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b. All changes to the Historic Property shall comply with applicable City plans and regulations, and conform to the rules and regulations of the Office of Historic Preservation of the State Department of Parks and Recreation, namely the U.S. Secretary of the Interior’s Standards and Guidelines for Historic Preservation Projects. These guidelines a re attached hereto, marked as Exhibit C, and incorporated herein by this reference. Owner shall continually maintain the Historic Property in the same or better condition.
c. A view corridor enabling the general public to see the Historic Property from the public right -of-way shall be maintained, and Owner shall not be permitted to block the view corridor to the property with any new structure, such as walls, fences or shrubbery, so as to prevent the viewing of the historic landmark by the public. d. The following are prohibited: demolition of the Historic Property or destruction of character-defining features of the building or site; removal of trees and other major vegetation unless removal is approved by a rehabilitation plan approved by the Historic Resources Commission; paving of yard surface; exterior alterations or additions unless approved by the Historic Resources Commission and such alterations are in keeping with the Secretary of Interior’s Standards; deteriorating, dilapidated or unrepaired structu res such as fences, roofs, doors, walls, and windows; storage of junk, trash, debris, discarded or unused objects such as cars, appliances, or furniture; and other unsightly by decoration, structure or vegetation which is unsightly by reason of its height, condition, or inappropriate location. e. Owner shall allow reasonable periodic inspection by prior appointment, as needed or at least every five (5) years after the initial inspection, of the interior and exterior of the Historic Property by representatives of the City of Santa Ana, the County Assessor, the State Department of Parks and Recreation, and the State Board of Equalization, to determine the Owner’s compliance with the terms and provisions of this Agreement. f. Owner shall implement the rehabilitation and restoration work items as discussed in detail in Exhibit D, “Proposed Structure Improvements.” All work items shall be completed within the first ten years of the Mills Act Agreement. Proof of status and completion, as requested from time to time by the City of Santa Ana, will be required in order to satisfy and maintain the Mills Act Agreement. Staff approval is required before items shall be amended or removed/replaced from the improvements list.
4. Furnishing of Information.
The Owner hereby ag rees to furnish the City with any and all information requested which may be necessary or advisable to determine compliance with the terms and provisions of this Agreement.
5. Cancellation.
a. The City, following a duly noticed public hearing by the City Cou ncil as set forth in Government Code Section 50280, et. seq., may cancel this Agreement if it determines that the Owner have breached any of the conditions of this Agreement, or ha s allowed the property to
MILLS ACT AGREEMENT
302 West Fourth Street
Santa Ana, CA 92701
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deteriorate to the point that it no longer meets t he standards for a qualified Historic Property, or if the City determines that the Owner have failed to restore or rehabilitate the property in the manner specified in Section 3 of this Agreement. If a contract is cancelled for these reasons, the Owner shall pay a cancellation fee to the County Auditor as set forth in Government Code Section 50286. This cancellation fee shall be a percentage (currently set at twelve and one -half (12 ½) percent by Government Code Section 50286) of the current fair market v alue of the property at the time of the cancellation, as determined by the county assessor, without regard to any restriction imposed pursuant to this Agreement.
b. If the Historic Property is destroyed by earthquake, fire, flood or other natural disaster such that in the opinion of the City Building Official more than sixty (60) percent of the original fabric of the structure must be replaced, this Agreement shall be canceled immediately because, in effect, the historic value of the structure will have been destroyed. No fee shall be imposed in the case of destruction by acts of God or natural disaster. c. If the Historic Property is acquired by eminent domain and the City Council determines that the acquisition frustrates the purpose of this Agreement, this A greement shall be cancelled and no fee imposed, as specified in Government Code Section 50288.
6. Enforcement of Agreement.
a. In lieu of and/or in addition to any provisions to cancel the Agreement as referenced herein, City may specifically enforce, or e njoin the breach of, the terms of the Agreement. In the event of a default, under the provisions to cancel the Agreement by Owner, the City shall give written notice to Owner by registered or certified mail, and if such a violation is not corrected to the reasonable satisfaction of the City Manager or designee within thirty (30) days thereafter, or if not corrected within such a reasonable time as may be required to cure the breach or default, or default cannot be cured within thirty (30) days (provided th at acts to cure the breach or default may be commenced within thirty (30) days and shall thereafter be diligently pursued to completion by Owner), then City may, without further notice, declare a default under the terms of this Agreement and may bring any action necessary to specifically enforce the obligations of Owner growing out of the terms of this Agreement, apply to any court, state or federal, for injunctive relief against any violation by Owner or apply for such relief as may be appropriate.
b. City does not waive any claim of default by the Owner if City does not enforce or cancel this Agreement. All other remedies at law or in equity which are not otherwise provided for in this Agreement or in City’s regulations governing historic properties are a vailable to City to pursue in the event that there is a breach of this Agreement. No waiver by City of any breach or default under this Agreement shall be deemed to be a waiver of any other subsequent breach thereof or default hereunder.
MILLS ACT AGREEMENT
302 West Fourth Street
Santa Ana, CA 92701
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7. Binding effec t of Agreement.
a. Owner hereby subjects the Historic Property, located at 302 West Fourth Street, Assessor Parcel Number, 398-591-05, and more particularly described in Exhibit A, in the City of Santa Ana, to the covenants, conditions, and restrictions as set forth in this Agreement. b. City and Owner hereby declare their specific intent that the covenants, conditions and restrictions as set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon Owner’s successors an d assigns in title or interest to the Historic Property. Every contract, deed, or other instrument hereinafter executed, covering or conveying the Historic Property or any portion thereof, shall conclusively be held to have been executed, delivered, and a ccepted subject to the tenants, restrictions, and reservations expressed in this Agreement regardless of whether such covenants, conditions and restrictions are set forth in such contract, deed, or other instrument.
c. This property is listed in the Santa Ana Register of Historical Properties (Register) and is located in the Downtown Register National Historic District . In any real property transaction, the owner of this property or the owner’s representative shall provide the buyer of this property with notic e that the property is listed on the City’s historic Register and is located within the Downtown Register National Historic District.
8. No Compensation.
Owner shall not receive any payment from City in consideration of the obligation imposed under thi s Agreement, it being recognized that the consideration for the execution of this Agreement is the substantial public benefit to be derived therefrom and the advantage that will accrue to Owner as a result of the effect upon the assessed value of the Prope rty on the account of the restrictions on the use and preservation of the Property.
9. Notice.
Any notice required by the terms of this Agreement shall be sent to the address of the respective parties as specified below or at other addresses that may be later specified by the parties hereto.
City: City of Santa Ana
20 Civic Center Plaza (M-30)
Santa Ana, CA 92702
Attn: City Clerk’s Office
Owners: 4th and Broadway OZ SPE, LLC, a Delaware Limited Liability Company Attn: Jeff Pintar
302 West Fourth Street
Santa Ana, CA 92701
MILLS ACT AGREEMENT
302 West Fourth Street
Santa Ana, CA 92701
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10. General Provisions.
a. None of the terms, provisions, or conditions of this Agreement shall be deemed to create a partnership between the parties hereto and any of their heirs, successors, or assigns, nor shall such terms , provisions or conditions cause them to be considered joint ventures or members of any joint enterprise.
b. The Owner agrees to and shall indemnify and hold the City and its elected and appointed officials, officers, agents, and employees harmless from lia bility for damage or claims for damage for personal injuries, including death, and claims for property damage which may arise from the direct or indirect use or operations of the Owner or those of his or her contractor, subcontractor, agent, employee, or o ther person acting on his or her behalf which relates to the use, operation, and maintenance of the Historic Property. The Owner hereby agrees to and shall defend the City and its elected and appointed officials, officers, agents, and employees with respect to any and all actions for damages caused by, or alleged to have been caused by, reason of the Owner's activities in connection with the Historic Property. c. This hold harmless provision applies to all damages and claims for damages suffered, or alleged to have been suffered, and costs of defense incurred, by reason of the operations referred to in this Agreement regardless of whether or not City prepared, supplied, or approved the plans, specifications or other documents for the Historic Property. d. All of the agreements, rights, covenants, conditions, and restrictions contained in this Agreement shall be binding upon and shall inure to the benefit of the parties herein, their heirs, successors, legal representatives, assigns, and all persons acquiring a ny part or portion of the Historic Property, whether by operation of law on in any manner whatsoever. e. In the event legal proceedings are brought by any party or parties to enforce or restrain a violation of any of the covenants, reservations, or restrict ions contained herein, or to determine the rights and duties of any party hereunder, the prevailing party in such proceeding may recover all reasonable attorney’s fees to be fixed by the court, in addition to court costs and other relief ordered by the court.
f. In the event that any of the provisions of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, or by subsequent preemptive legislation, the validity and enforceability of the remaining provisions, or portion s thereof, shall not be effected thereby.
g. This Agreement shall be construed and governed in accordance with the laws of the State of California, with venue in Orange County.
MILLS ACT AGREEMENT
302 West Fourth Street
Santa Ana, CA 92701
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11. Recordation.
No later than twenty (20) days after the parties execute and enter into this Agreement, the City shall cause this Agreement to be recorded in the office of the County Recorder of the County of Orange.
12. Amendments.
This Agreement may be amended, in whole or in part, only by a written recorded instrument executed by the parties hereto.
13. Effective Date
This Agreement shall be effective on the day and year first written above in Section 1.
{Signature page follows}
MILLS ACT AGREEMENT
302 West Fourth Street
Santa Ana, CA 92701
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ATTEST: CITY OF SANTA ANA
________________________ _________________________
JENNIFER L. HALL KRISTINE RIDGE
Clerk of the Council City Manager
OWNER
Date: ______________________ By:_________________________
JEFF PINTAR
4th and Broadway OZ SPE, LLC, a
Delaware Limited Liability Company
APPROVED AS TO FORM: RECOMMENDED FOR APPROVAL:
SONIA CARVALHO
City Attorney
By: _____________________ _____________________
BRANDON SALVATIERRA MINH THAI
Deputy City Attorney Executive Director
Planning and Building Agency
MILLS ACT AGREEMENT
302 West Fourth Street
Santa Ana, CA 92701
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EXHIBIT A
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA
ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
THAT PORTION OF THE REAL PROPERTY RECORDED DECEMBER 30, 1957, IN BOOK 4150, PAGE 305, OF OFFICIAL RECORDS OF CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE SOUTH LINE OF FOURTH STREET WITH THE WEST LINE OF BROADWAY; THENCE WEST ALONG THE SOUTH LINE OF FOURTH STREET, 92.15 FEET; THENCE SOUTH 100 FEET; THENCE EAST 92.15 FEET; THENCE NORTH 100 FEET TO THE POINT OF BEGINNING.
Assessor’s Parcel Number: 398-591-05
Exhibit B
MILLS ACT AGREEMENT
302 West Fourth Street
Santa Ana, CA 92701
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Exhibit C
Exterior work shall be reviewed by the Historic Resources Commission and subject to the U.S.
Secretary of the Interior’s Standards for Rehabilitation of Historic Buildings, as follows:
1. Every reasonable effort shall be made to provide a compatible use for a property which requires minimal alteration of the building, structure, or site and its environment, or to use a property for its originally intended purpose.
2. The distinguishing original qualities or character of a building, structure or site and its environment shall not be destroyed. The removal or alteration of any historic material or distinctive architectural features should be avoided when possible.
3. All buildings, structures, and sites shall be recognized as products of their own time. Alterations that have no historical basis and which seek to create an earlier appearance shall be discouraged.
4. Changes which may have taken place in the course of time are evidence of the history and development of a building, structure, or site and its environment.
These changes may have acquired significance in their own right, and this significance shall be recognized and respected.
5. Distinctive stylistic features or examples of skilled craftsmanship which characterize a building, structure, or site shall be treated with sensitivity.
6. Deteriorated architectural features shall be repaired rather than replaced, whenever possible. In the event replacement is necessary, the new material should match the material being replaced in composition, design, color, texture, and other visual qualities. Repair or replacement of missing architectural features should be based on accurate duplications of features, substantiated by historic, physical, or pictorial evidence rather than on conjectural designs or the availability of different architectural elements from the other buildings or structures.
7. The surface cleaning of structures shall be undertaken with the gentlest means possible. Sandblasting and other cleaning methods that will damage the historic building materials shall not be undertaken.
8. Every reasonable effort shall be made to protect and reserve archaeological resources affected by, or adjacent to any project.
9. Contemporary design for alterations and additions to existing properties shall not be discouraged when such alterations and additions do not destroy significant historical, architectural or cultural material, an such design is compatible with
MILLS ACT AGREEMENT
302 West Fourth Street
Santa Ana, CA 92701
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size, scale, color, material and character of the property, neighborhood, or environment.
10. Wherever possible, new additions or alterations to structures shall be done in such a manner that if such additions or alterations need to be removed in the future, the essential form and integrity of the structure would be unimpaired.
Proposed Structure Improvements ("Work Plan")
302 West Fourth Street
Year Improvement
2024 Renovation of existing building, including seismic retrofitting, new roof installation, utility upgrades, tenant improvements, and addition of a new rooftop unit.
2024 Interior conversion of the unit addressed as 302 West Fourth Street from existing commercial retail space to a new restaurant use
2024 All character-defining features on the north and east facades will be protected and repaired in-kind as needed, which includes original brick exterior, glazed brick trim, parapet, bay divisions articulated by piers, and architectural ornamentation.
2024 The storefront addressed 304 West Fourth Street is composed of non-original replacement materials (aluminum-framing and replacement glazing) and will be restored to original wood-frame and glazing materials to match the original materials on the adjacent storefronts.
2024 The two storefronts addressed 306 and 308 West Fourth Street, each feature a wood spacer between them in order to support a wall between the two retail spaces. The spacers at the doors and between the upper transoms will be removed in order to align the doors as true double-doors. The transoms will be restored as a single transom at each storefront.
2024 Addition of two new accordion-style aluminum metal doors with glazing, which will replace non-original windows at the east facade (while maintaining and protecting in place the original multilight transoms above)
2024 Building code modifications to the existing paired pedestrian doors on the east façade, which consist of changing the door swing orientation, lowering the floors, and removing the exterior steps.
2024 Wall at rear (south) façade to be rebuilt for structural purposes.
New wall will reuse existing brick as feasible and include new door and window openings. New wall design to reflect existing design to amount feasible in order to preserve historic character.
Exhibit D